the grutter decision was 5-4 which chief justice ren quest was chief. it was a decision byjustice sandra y,o'connor, who was in the courtroom today of the guest seats of the justices. >> ifill: is that unusual? >> she has come occasion amy but i think she has a special interest in this case. you have new justices. you have four new justices on the court. but with the absence of justice kagan in this case, you're dealing with eight justices, the possibility of a 4-4 split. also, justice kennedy has always been the key vote in these race-based cases. he asked very few questions today, so hedidt really reveal-- >> ifill: you couldn't really read him. >> no, you couldn't. but i will say this about justice kennedy in these types of cases -- he has never found an affirmative action plan that he feels is constitutional. but he always holds out the hope that there is one out there. >> ifill: so this is not-- this is basically take the power away from colleges to make the decision about what's acceptable, and let the courts decide it? >> it depends on how the co